Lewis v. Comanche County

• Decision Date: 31 May 1888
• Parties: LEWIS v. COMANCHE COUNTY.
• Court: U.S. District Court — District of Kansas

35 F. 343

LEWIS v. COMANCHE COUNTY.

United States Circuit Court, D. Kansas.

May 31, 1888

Williams & Dillon and Rossington & Smith, for plaintiff.

G. C Clemens and H. A. Smith, for defendant.

FOSTER J.

The plaintiff alleges in his petition that the defendant is a corporation duly organized under the laws of the state of Kansas, and on or about March 10, 1874, made and issued its certain bonds, payable 10 years after date, with 10 per cent interest, copies of which are attached; that said bonds had certain coupons attached for the interest to become due thereon, etc.; that the plaintiff is the holder and owner of the coupons sued upon, and praying judgment for something over $30,000 and interest. The defendant denies, generally the allegations of the petition, and specially denies that Comanche county was duly organized at the time said bonds were issued; that, on the contrary, it was not organized until February, 1885, and denies that it ever authorized the making, issuing, or delivering of said bonds, etc. The agreed facts as to its organization are, briefly, as follows, Prior to September 8, 1873, Comanche county was an unorganized county of this state. On September 8, 1873, a petition was presented to the governor, purporting to be signed by over 40 inhabitants and electors of said county, stating that there were 600 inhabitants in said county, and asking that said county be organized, and that A. Updegraff be appointed census taker, and G. Brazell, R. Updegraff, and David Connell be appointee temporary county commissioners, and J. W. Lane temporary county clerk, and that the temporary county-seat be located on section 33, township 32 S., range 18 W., which petition was verified by three persons, whose residence is not stated. On September 23d a petition was presented to the governor, purporting to be signed by over 60 citizens of said county, asking to have Smallwood made the temporary county-seat. On October 15th Governor Osborn appointed A. Updegraff census taker of said county, who filed his oath of office, and thereafter proceeded to take, or pretended to take, a census of said county, and returned a list of 600 inhabitants, certified as correct, etc. On October 28th the governor issued his proclamation, which is as follows:

'PROCLAMATION.

'Whereas, a memorial signed by forty householders, residents of Comanche county, Kan., and legal electors of the state, whose signatures have been duly attested by the affidavit of three householders thereof, showing that said county has six hundred inhabitants, and praying for the organization of the same, said affiants setting forth that they have reason to believe, and do believe, said memorial; and whereas, it appears from actual enumeration by the census returns, duly made and certified according to law by an officer regularly commissioned and qualified, that there are six hundred bona fide inhabitants of said county of Comanche; Now, therefore, know ye, that I, Thomas A. Osborn, governor of the state of Kansas, by authority vested in me, have appointed and commissioned G. Brazell, A. J. Mowry, and David Connell special county commissioners, and H. H. Moss special county clerk of Comanche county, Kan., who were the persons recommended for said offices in said memorial, and do hereby declare Smallwood the temporary county-seat of said county.

'In testimony whereof I have hereunto set my hand, and caused to be affixed the great seal of the state.

'Done at Topeka, this 28th day of October, 1873. (Seal.) 'THOMAS A. OSBORN.

'By the Governor. W. H. SMALLWOOD, Secretary of State.'

It will be observed that the governor does not declare the county organized, but appoints special county commissioners and a special county clerk, and declares Smallwood the temporary county-seat. This was all he was authorized to do under law. The legislature has absolute power over the organization of new counties. It may designate just what proceedings are necessary to such organization. These proceedings may involve the exercise of ministerial and judicial powers, or it may be done by the direct act of the legislature itself. The governor's duties in this case are ministerial, and must be in substantial conformity to law. No proclamation of the governor declaring the county organized is required.

Act March 1, 1872, p. 243; State v. Commissioners, 12 Kan. 445. The legislature, by the act of 1872, expressly points out the manner of the organization of new counties. After providing for the presentation of the memorial of 40 householders, duly verified, the governor appoints a census taker, who shall take the census, and make his return, and if it appears by such return that there are 600 bona fide inhabitants of said county, the governor shall appoint and commission three persons, who shall be recommended in the memorial, to act as county commissioners, and a proper person to act as county clerk, recommended in like manner, and shall designate the temporary county-seat; and from and after the qualification of the officers so appointed said county shall be deemed duly organized. There is no evidence in this case as to the officers having qualified, but inasmuch as they entered upon the discharge of their respective duties, and as it appears from the evidence they did perform some official acts, it may be presumed that they qualified as required by law. From the agreed facts and the evidence produced it appears, satisfactorily to my mind, that the names in the memorial to the governor for the organization of the county were not of householders of Comanche county, with possibly three of four exceptions. Nor were the persons who made affidavit thereto householders of said county, and said affidavit was false in fact; nor were there 600 inhabitants, nor a twentieth part of that number, in said county at the time the pretended census was taken; nor was there any taxable property, real or personal, in said county. The whole proceeding to organize said county was a conspiracy, a sham, and a pretense, supported by fraud and perjury, and accomplished for the purpose of making a de facto organization for the purpose of issuing bonds to enrich the conspirators, and to get money from innocent parties, and saddle a debt upon the future inhabitants of the county. When this had been accomplished, the conspirators decamped from the county. So far as the records are concerned, the organization appears to be (with some exceptions, such as the governor not appointing for clerk, and for one commissioner, the persons named in the memorial) substantially in compliance with the statute. From these facts there can be no doubt that the pretended organization was illegal, fraudulent, and void. State v. Commissioners, supra; State v. Sillon, 21 Kan. 207.

A more difficult question, and one of much importance, remains to be determined. Was there such a de facto organization of the county as would impose upon it a legal liability to parties purchasing its bonds before due, and without notice of fraud? The plaintiff in this case is such a holder of these bonds. In this case there was legislative recognition of the organization of the county, by attaching it to another county for judicial purposes. If there was a de facto organization then, under the decisions, of the supreme court of Kansas, legislative recognition of the organization, as before stated, would validate and make legal the organization. Harper Co. Case, Id. 210; Pawnee Co. Case, 12 Kan. 426. And where the organization has been validated by legislative recognition, the removal of the officers from the county, or the failure to elect...